Air Force refuses to follow Michigan PFAS law

Updated Jan 29, 2019; Posted Jan 29, 2019

Jake May

A sign warns people not to eat the fish before entering Clark's Marsh on June 6, 2018 in Oscoda. High PFAS levels from the closed Wurtsmith Air Force Base have been detected in Van Etten Lake, Clark's Marsh and the Au Sable River.

OSCODA, MI — The U.S. Air Force is telling the state of Michigan to take a regulation designed to severely limit toxic PFAS chemicals in the environment and shove it.

In a Dec. 7 letter, the Air Force claims that federal sovereign immunity allows it to disregard the Michigan Department of Environmental Quality’s attempt to force its compliance with a regulation that caps the amount of PFAS chemicals entering surface water.

The letter follows a violation notice issued Oct. 19 by the DEQ, which says the Air Force is failing meet a 12 parts per trillion (ppt) limit on the amount of PFAS allowed in Michigan groundwater at the point where it co-mingles with a lake or river.

The violation was issued as part of a years-long investigation into PFAS contamination in Oscoda around the former Wurtsmith Air Force Base, where past use of chemical-based AFFF firefighting foam has polluted drinking water, lakes, rivers and local wildlife, and is causing regular instances of toxic lake foam to pileup on local beaches.

The DEQ “lacks the jurisdictional authority” to force compliance because the federal government “has not waived sovereign immunity with regard to the state regulation on which the (violation notice) is premised,” a senior Air Force official wrote.

The Air Force “is hereby informing you that it will not be taking any new remedial actions at this time,” wrote Stephen Termaath, chief of the Air Force civil engineering center program that coordinates cleanup at contaminated former bases.

The letter represents further discord between Michigan and the Air Force related to cleanup at Wurtsmith, where the DEQ discovered PFAS in 2010. It was the first of many sites at which the contaminants have been found in the state.

In December 2017, the state invoked a dispute resolution process with the Air Force under a joint federal and state defense site cleanup program. Michigan officials contend, among other things, that federal efforts are not adequate to tackle the widespread pollution.

The DEQ wants a fourfold increase in the amount of contaminated groundwater the Air Force is pumping from underneath the base into a granular activated carbon filtration (GAC) system installed last summer — a year behind schedule. The state also wants to increase the overall size of the area where groundwater is being captured.

According to the DEQ, plumes on base are seriously harming an Au Sable River wetland area known as Clark’s Marsh, where the individual compound PFOS has tested at 42,000-ppt in the groundwater and 1,400-ppt in the surface waters of the marsh.

In October, Michigan issued the nation’s first “Do Not Eat” deer advisory based on PFAS contamination for an area around the marsh. A fish consumption advisory has been in place for several years.

Arnie Leriche, a former Environmental Protection Agency engineer who co-chairs the Wurtsmith Restoration Advisory Board in Oscoda, said the Air Force is extremely reluctant to comply with the strict 12-ppt surface water standard in Michigan out of concern the move might be seen a precedent setting for the Department of Defense.

As of 2017, the Pentagon had identified about 400 active and former bases or installations with known or suspected PFAS contamination.

The state estimates that, in Michigan alone, the initial PFAS cleanup bill around all the contaminated military sites could reach as high as $335 million. Wurtsmith is a large piece of that figure. Last year, the state estimated the base needs 20 GAC filtration units to clean up the plumes at a total cost of $178 million, which includes more than a decade of operational costs.

“Even if it just applies in Michigan, it’s going to be a budget buster,” Leriche said.

Leriche, who testified about the problem before the U.S. Senate in September, said the Air Force could move faster if it wanted to, and there are examples, such as Pease Air Force Base in New Hampshire, when it has. Leriche said that federal Superfund law, known by the acronym CERCLA, lets the Air Force to take a drawn-out “phased” approach to addressing the pollution that amounts to “taking the slow boat to China.”

Because the EPA hasn’t designated PFAS chemicals as “hazardous,” Leriche said the Air Force can essentially ignore state law until it gets to the “remedial investigation” phase. He said the Air Force is moving slowly at Wurtsmith out of budgetary concern, but “also because they don’t want to get to the phase in CERCLA where they have to acknowledge, officially, state rules, standards and criteria.”

That could take another decade, he said.

“They’ve already spent the last four years wasting time,” Leriche said.

Messages seeking comment from the Air Force last week were not returned.

In a statement, the DEQ says it’s “working aggressively” to hold the Air Force accountable for the pollution, and that it’s approach is “science-based and data-driven.”

The DEQ would not make Wurtsmith site manager Robert Delaney, a scientist who first raised alarms about PFAS in state government, available for an interview.

The DEQ is aiming for a “full remedy” in Oscoda, said agency spokesperson Scott Dean.

“The slow response by the Air Force to the Wurtsmith contamination is having an increasingly negative impact on the people, wildlife and environment in Oscoda," Dean said. "Although Michigan seeks to work cooperatively with the Air Force, slow response to PFAS contamination is not acceptable.”

The DEQ appears to be working in closer concert on the Wurtsmith problem with the Attorney General’s office under Dana Nessel than with her predecessor Bill Schuette, on whom the agency waited nearly a year between April 2017 and February 2018 for written input about the Air Force’s liability to remediate contaminated groundwater.

In a statement, Nessel’s office spokesperson Kelly Rossman-McKinney said the attorney general and “and her team continue to work with DEQ to hold the U.S. Air Force accountable for PFAS contamination at its former Wurtsmith base in Oscoda.”

“We take polluting our land, our water and our people very seriously and we are prepared to use every regulatory and legal means necessary to force the Air Force to address this contamination,” Rossman-McKinney said.